The Sabarimala verdict emerged almost immediately after the Navtej Singh Johar judgment that decriminalized homosexuality. Like it or not, the Indian social fabric is now undergoing a series of alterations. The Justices of the Supreme Court of India have proven to be some of the most skilled craftsmen, tailoring laws in accordance with the changing dimensions of social structures and accounting for the desperate cries for gender justice and women’s equality. The Sabarimala judgment has emerged at a time when the country’s women are already seething with rage and voicing their struggles in the MeToo Movement. How big an impact this judgment will now make in history is unknown. Amidst all this also lies a more profound meaning behind the dissent of a single female judge seated amongst them.
The language of this lengthy judgment carries with it a formidable sense of power and is so beautifully crafted that it could be mistaken for literature. Giving credit where it is due, the judges have gone out of their way to add metaphors and quotes – in true Anglo-Saxon style – solidifying its impact. The writ petition under Article 32 of the Indian Constitution was filed against the Government of Kerala; Devaswom Board of Travancore; Chief Thanthri of Sabarimala Temple; and, the District Magistrate of Pathanamthitta. In 2017, a three-judge bench of the Supreme Court had raised 5 key questions to be answered by a Constitutional Bench (a bench of 5 or more justices).
“1. Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?
2. Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?
3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of the Consolidated Fund of Kerala and Tamil Nadu to indulge in such practices violating constitutional principles/morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?
4. Whether Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?
5. Whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?”
These were the questions that the recent verdict of the Court answered.
Prior to these contentions, the Division Bench at the High Court of Kerala had upheld the practice of banning the entry of women between ages 10 and 50 into the Sabarimala Temple – their defence? Convention. The God in the temple was a Bramchari (celibate), and it was believed therefore that women ought not to visit the temple to prevent him from being led ‘astray’. They held that the restriction was not violative of Articles 15 , 25 and 26 of the Constitution, and that this was not a restriction against women as an entire class but only in the case of women of a certain age group.
In a 4:1 verdict, the Supreme Court Constitution Bench took a very progressive take on the issue. The four judges expressed their dissatisfactions towards age-old repressive norms. The sole female judge on the bench, quite surprisingly, was the lone dissent. Here’s what they all had to say.
“The attribution of devotion to divinity cannot be subjected to the rigidity and stereotypes of gender.”
Then Chief Justice of India, Dipak Misra, began his judgment by vividly illustrating the hypocrisy with which Indian society treats women. He pointed out that a society that exalted women as goddess simultaneously imposed “rigorous sanctions” in matters of devotion. Taking to metaphysics, he opined that the transcendental idea of spirituality could not be subjected to terms and conditions, let alone the rigors of patriarchy.
On question 3, the judges had collectively agreed that a “religious denomination” was one that possessed a “collective common faith, a common organisation, and, was labeled, branded and identified by a distinct name.” Following this, the majority refused to accept that the temple met the criteria as the devotees didn’t follow strict tenets specific to themselves – opening the door to a restricted interpretation of religious rights. As for the second condition, it was held that there was no clear case of adherence, since persons from all religions could enter the temple, regardless of faith. The court couldn’t locate any collective group of individuals known as “Ayyappans” who adhered to peculiar tenets of their own – and so, there was no evidence of them being organized into a religious denomination.
Devotees offering prayers at Sabrimala.
However, Justice Indu Malhotra held otherwise. Her consideration was that the pleas put forward by the displayed a clear practice of manners peculiar to the specific groups. These included – the observance of the 41 day Vratham period, and titular designation of male worshippers as Ayyappans and females as Malikapurams.
The Conflict of Legislation
The majority argument is that Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act of 1965 is in contradiction to Rule 3 (b) of the same act. Section 3 says that,
“…every place of public worship which is open to Hindus generally…shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform. Provided that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in matters of religion.”
Here, the Court argued that the clause throws open the temple to the entirety of the Hindu population regardless of specificity of gender, etc. They further state in paragraph 132 that the proviso holds no weight as they had proven that the temple was not a religious denomination.
Simultaneously, they declared Rule 3(b) under Sec. 4 to be ultra vires. The rule read that certain classes of people would not be entitled to enter the temple premises and had a specific exemption preventing women of certain classes or age from entering a place of worship as provided by custom.
Applying the longstanding rules of statutory interpretation, the Court found that the provisions in question ought to fulfill two conditions which require that the rule should be in consonance with the act and should be within the legislative competence (power) of the authority making it. Since the proviso did not apply, the court found the rule to be obstinate.
Essential Practices Doctrine
The Essential Practices Doctrine, first formulated by the Supreme Court in the 1957 case of Ram Prasad v. State of UP, provides for the test on the practices which are considered sacrosanct and inviolable, and those which can be modified by the courts. This doctrine was applied by the court in the Sabrimala Case as well, observing,
“The exclusionary practice, which has been given the backing of a subordinate legislation in the form of Rule 3(b) of the 1965 Rules, framed by the virtue of the 1965 Act, is neither an essential nor an integral part of the religion.”
Responding to the contention that the Board had been allowed to own property by virtue of being a religious denomination, the court differentiated between the right to manage one’s own religious affairs and right to acquire property by virtue of being a religious denomination. The former is a fundamental right, while the latter was subject to the laws of the land and therefore open to regulation.
On questions 1 and 2, the majority held that the exclusionary practice not only violated equality (Art. 14) and was discriminatory in nature (Art. 15), but also seemed to encourage the age-old abolished practice of untouchability (Art. 17). It is worth noting here that while untouchability is usually understood as a caste specific discrimination rather than a gender specific, the Constitution does not define the practice at all. The view that Article 25(2)(b) – power of the state to regulate religious affairs – was a broad exception to religious freedoms guaranteed under Articles 25 and 26 of the Constitution.
Justice Indu Malhotra’s dissent came as a shock to most people - the sole woman on a bench discussing women’s rights voted to curtail them. But her argument is important to consider. She argued that on grounds of customary prevalence for years, the devotees – both male and female – observed a defined set of tenets essential to their beliefs. Her argument is that the exclusion of women is “not absolute or universal” and that at several other temples of the same sect, where the idol is not a celibate, women enjoy unfettered access. The dominant objective of the faith, and the essential practice mandated by it, is to ensure that the pilgrims “practice spiritual self-discipline”. Keeping women between ages 10 and 50, therefore, was not out of any such discriminatory nature but out of necessity of faith. She relied on the essential practice test laid down in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.
Hon'ble Justice Indu Malhotra
In essence, Justice Malhotra has chosen to give primal importance to the Freedom of Religion guaranteed under Article 25 of the Indian Constitution. She argued, and quite bravely, one might add, that Art. 25 (1) promised the people freedom of conscience and allowing women would directly contravene the interests of those professing the religion. She preferred to give a limited reading to the exception that allows for state regulation. Equality, according to J. Malhotra, can only be invoked in matters of religion by those persons belonging to the same faith, creed or sect. In this case, the petitioners were activists, and so the employment of Art. 14 in this case is fallacious. She says,
“In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain PILs challenging religious practises followed by any group, sect or denomination, could cause serious damage to the Constitutional and secular fabric of this country.”
On Constitutional Morality, she contends that notions of faith, in accordance with their tenets, must be governed by the very understanding of the faith, and not of external rationality imposed by the courts. As for untouchability, she highlighted that not all forms of exclusion could be tantamount to untouchability. The word was never used in the context of women, but has always historically been associated with the cause of the Harijans or people from depressed castes. To conflate the two, according to her, is a gross misinterpretation on part of the court.
On the question of contradictory legislations, i.e., s.3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act and Rule 3(b) of the same act, she argues for a harmonious interpretation that is more accommodative to the intent of the legislation.
Implications of the Judgment
The judgment promises to secure to women the opportunity to enter the temple. The ultimate end, a step towards women’s equality, is still far away. A month on, the judgement has split the country down the middle. Women continue to be denied entry by those claiming to be loyal devotees, while the central government (run by the Hindu Nationalist BJP) and the state government (run by Communists) spar over whether to implement the SC order in the first place. Amit Shah, the President of the BJP, even questioned whether the courts should be passing orders over such matters – ironically enough, he couldn’t stop praising the same court a few months ago when it intervened to protect women in the matter of Islamic Divorce law.
In the last week, the All Kerala Brahmins Association, in response to the judgment, submitted a petition to the Supreme Court to undo the “grave miscarriage of justice” against Ayyappa devotees. They assert in their Writ Petition that the Court had grossly misconstrued the true state of affairs and had mistaken “pilgrims” for “devotees” in defining a religious denomination. They argue that pilgrims are those who may visit the religious landmark, but devotees are those bound by a “sacred narrative” and with a particular interest. They further go on to illustrate numerous practices followed by various temples around the country, and how those haven’t been tampered with, as a defence to their arguments.
As for Justice Malhotra’s dissent, while it might seem abhorrent to most people today, an objective reading is absolutely essential to understanding it. Her entire argument is predicated on constitutional ideals and a confined reading of legislation. She defends the right of individuals to profess their religions and believes that interference in those affairs would prove detrimental.
Coming at a time when society is reeling under the pressure of the #MeToo Movement, this dissent is indicative of the voice that stands to question the dominant narrative. It is also remarkable for the fact that her being a woman did not hamper her willingness to contend what she thought was right is rather remarkable. But, the gates have been opened only in theoretical terms. It might take something more than mere opening of passageways to truly obliterate the gender divide that this country faces.
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About the Author
Kamya Vishwanath is extremely passionate about her political opinions and reads extensively about the subject. A strong advocate of mental health and combating stigma around the same, she has interned with the Spastics Society of Karnataka and the Center for Law and Policy Research and continues to write passionately about mental illness.